AQA Law
This second edition of AQA AS Law is an update of the established AQA AS Law Student Book. Building on all the strengths of the first edition to bring you the same confidence in specification coverage and assessment insights, this second edition has been fully revised and updated to incorporate recent changes to the law.
AS
This Nelson Thornes book offers an accurate, well-supported and closely linked guide to the AQA AS Law course.
AQA Law
AS
This book features: clear, uncomplicated language to help students grasp legal concepts key terms and cases highlighted alongside the main text to aid revision regular learning activities to practice applying knowledge to a variety of contexts new case studies and up-to-date examples that incorporate recent changes to the law updated examination-style questions that provide effective exam preparation.
Law
Other related titles AQA Law A2 Student Book Second Edition 978 1 4085 1971 4
Second Edition I S B N 978-1-4085-1946-2
Nick Price Richard Wortley Peter Smith Jennifer Currer Series editor
9
781408 519462
Richard Wortley
Second Edition
Text © Nick Price and Richard Wortley 2008, 2012 Original illustrations © Nelson Thornes Ltd 2008, 2012 The right of Nick Price and Richard Wortley to be identified as authors of this work has been asserted by them in accordance with the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording or any information storage and retrieval system, without permission in writing from the publisher or under licence from the Copyright Licensing Agency Limited, of Saffron House, 6–10 Kirby Street, London, EC1N 8TS. Any person who commits any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. First published in 2008 by Nelson Thornes. This edition published in 2012 by: Nelson Thornes Ltd Delta Place 27 Bath Road CHELTENHAM GL53 7TH United Kingdom 12 13 14 15 16 / 10 9 8 7 6 5 4 3 2 A catalogue record for this book is available from the British Library ISBN 978 1 4085 1946 2 AQA examination questions are reproduced by permission of AQA. Cover photograph: Cultura Creative/Alamy Illustrations by Gordon Lawson; additional illustrations by Hart McLeod Ltd Page make-up by Hart McLeod Ltd and White-Thomson Publishing Ltd Printed in Turkey by Ömür Printing and Binding Company
Contents Introduction
Table of cases Table of statutes
v vi x
Unit 1B The legal system
75
Unit 1A
Introduction
Law-making 2
5 The civil courts and other forms of dispute resolution 76
Introduction
2
1
Parliamentary law-making
3
1 2 3
Influences on parliamentary law-making The legislative process Advantages and disadvantages of parliamentary law-making Parliamentary supremacy
3 10
4
2 Delegated legislation 1 2 3
17 19
24
Types of delegated legislation 24 Control of delegated legislation 32 Advantages and disadvantages of delegated legislation 38
3 Statutory interpretation
41
1 2 3
41 45
Approaches to statutory interpretation Aids to interpretation Advantages and disadvantages of the rules of interpretation
4 Judicial precedent 1 2 3
49
55
The doctrine of judicial precedent 55 Methods of avoiding judicial precedent 64 Advantages and disadvantages of the doctrine of judicial precedent and the methods of avoiding precedent 67
Practice questions
1 2 3
75
Outline of civil courts and appeal system Other forms of civil dispute resolution Advantages and disadvantages of forms of civil dispute resolution
6 The criminal courts and lay people
76 79 86
94
1 Outline of criminal courts and appeal system 94 2 Magistrates 95 3 Jurors 101 4 Advantages and disadvantages of using lay people in the criminal courts 106
7 The legal profession and other sources of advice and funding 1 2 3
The legal profession Funding and other sources of legal advice Evaluation of the legal profession, funding and other sources of advice
8 The judiciary
113 113 123 129
137
1 Judges 2 Independence of the judiciary 3 Evaluation of the judiciary
137 149 152
Practice questions
159
70
iii
Unit 2A Criminal liability
164
Introduction 164 9 Underlying principles of criminal liability 165 1 Introduction to criminal liability 165 2 Actus reus 168 3 Causation 170 4 Mens rea 174 5 Coincidence of actus reus and mens rea and transferred malice 176 6 Strict liability 179
10 Non-fatal offences 1 Introduction to the offences 2 The nature of the offences 3 Assault 4 Battery 5 Section 47 of the Offences Against the Person Act 1861 6 Section 20 of the Offences Against the Person Act 1861 7 Section 18 of the Offences Against the Person Act 1861
11 The criminal courts: procedure and sentencing
183 183 183 184 185 186 188 189
192
1
Outline of criminal courts and appeal system 192 2 Outline procedure to trial 195 3 Sentencing 199 Practice questions
207
Tort 209 Introduction 209 1 2 3 4
Introduction to liability in negligence The duty of care Breach of duty Damage caused by the defendant’s breach
iv
Outline of civil courts and appeal system for a negligence case 2 An outline of the procedure of a negligence case up to trial 3 Damages
230
1
Practice questions
230 233 238 244
Unit 2C The law of contract
246
Introduction 246 14 Formation of contract 1 Introduction to formation of contract 2 The offer 3 Acceptance 4 Intention to create legal relations 5 Consideration
247 247 250 256 260 262
15 Breach of contract and the courts: procedure and damages 265 1 2 3
Breach of contract 265 Outline of civil courts and appeal system 267 An outline of the procedure of a contract case up to trial 270 4 Damages 272 Practice questions
276
Index 278 Acknowledgements 282
Unit 2B
12 Liability in negligence
13 The courts: procedure and damages for negligence cases
210 210 213 217 224
Introduction 44 About this book Nelson Thornes has developed this book to ensure that it offers you the best support for your AS course and helps you to prepare for your exams. You can be confident that this book has been reviewed by subject experts, and is closely matched to the requirements of your specification.
44 How to use this book The book content is divided into chapters matched to the sections of the AQA Law specification for Units 1 and 2. Unit 1A (Law-making) and 1B (The legal system) cover Unit 1. Unit 2A (Criminal liability), 2B (Tort) and 2C (The law of contract) cover Unit 2. The features in this book include:
In this topic you will learn how to: Each chapter is made up of two or more topics. At the beginning of each of these topics, you will find a list of learning objectives that contain targets linked to the requirements of the specification.
Key terms Terms that you will need to be able to define and understand.
Link These refer you back to other points in the book that consider similar issues.
Key cases Cases that demonstrate a key legal concept.
Activity Things for you to do that will reinforce the information you have just learned.
Study tips Hints to help you with your study and to prepare you for your exam.
Practice questions Questions in the style that you can expect in your exam.
You should now be able to: A bulleted list of learning outcomes at the end of each chapter summarising core points of knowledge.
v
2
Delegated legislation
In this topic you will learn how to:
1 4 Types of delegated legislation 4
44 describe how delegated
The verb ‘delegate’ means to pass power, responsibility or authority to another person or body. Delegated legislation is law made by a person or body to which Parliament has delegated law-making power.
legislation in general is made 44 describe how each of the main
types of delegated legislation are made.
Link Primary legislation is law passed by Parliament. For more detail, see Chapter 1 (Parliamentary law-making), p3.
Key terms Delegated legislation: a law made by a person or body to which Parliament has delegated (or given) law-making power. Parent Act: this term can equally be used because the delegated legislation can be viewed as the offspring or product of the original Act. Enabling Act: an original Act passed by Parliament that enables another person or body to make law.
Most Acts passed by Parliament each year provide a framework for the law, but more detailed rules are often needed. Parliament does not have enough time or expertise to make all these more detailed laws. There is often only time in a parliamentary session to debate a limited number of new laws and policy issues, especially as Parliament also has to hold the Government to account. There are several reasons why details may need to be added: 44 a new law may be required for a specific area of the country, for which case specialist local knowledge may be required. 44 a new law on a technical matter, such as health or agriculture, will require specialist technical knowledge. 44 sometimes, an emergency or a new situation may require a new law to be made very quickly. Parliament often does not possess the necessary specialist local or technical knowledge to make law quickly. Also, the formal legislative process (outlined in Chapter 1), requiring readings in both Houses of Parliament, is not suitable when there is an emergency. For these reasons, it is necessary for Parliament to delegate law-making power to people and bodies who are better equipped to make the necessary, detailed legal reforms.
The parent (or enabling) Act In order for Parliament to delegate its power to another, a parent Act, otherwise known as an enabling Act, must be passed. By this piece of primary legislation, Parliament gives authority to others to make law. The parent Act will enable further law to be made under this authority. The parent or enabling Act contains the outline framework of the new law. Within the Act there will be authority for a specified person (such as a government minister) or body (such as a local authority) to make further, more detailed law. It is these provisions of the enabling Act that delegate the power to make law. It is likely that the Act will specify the area within which law can be made, and any procedures that the delegated person or body must follow when making the delegated laws. Law-making power is given to the person or body best equipped with the knowledge and resources to make the type of law required. As with the law banning smoking in enclosed public spaces, power to make law on such a technical matter is given to a government minister, who has the support of a specialist civil service department. If power is given to a local authority to make delegated legislation, they will have the required local knowledge. If it is given to another body,
24
Chapter 2 Delegated legislation such as a train or bus company, it will be given to make laws in respect of their property (for example, to enforce the payment of fares).
Types of delegated legislation Orders in Council Historically, the Monarch ruled the country through the Privy Council. As the powers of the Monarchy were eventually reduced and Parliament emerged as the sovereign power, the powers of the Privy Council diminished. One of the remaining functions of the Privy Council is to make Orders in Council. Orders in Council are drafted by the Government and given formal approval by the Queen and the Privy Council. There are currently over 420 members of the Privy Council; however, only three or four current government ministers attend meetings at which Orders in Council are made. The Privy Council, in full, consists of current and former government ministers, senior politicians (for example, leading members of the opposition parties), members of the Royal Family, two Archbishops, senior judges, British Ambassadors, and leading individuals of the Commonwealth. Appointment is made by the Queen on the advice of the Government, and is for life.
Key terms Privy Council: a body made up of senior current and former politicians, senior judges and members of the Royal Family. Orders in Council: laws made by the Queen and Privy Council which are enforceable in courts.
Fig. 2.1 Tony Blair, Prime Minister of the UK from 1997 to 2007, is a member of the Privy Council
25
Unit 1A Law-making Orders in Council are used in many situations, including: 44 transferring responsibilities between government departments, or from Westminster departments to the Scottish Parliament and the Welsh Assembly; this was done by the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 and the National Assembly of Wales (Transfer of Functions) Order 1999 44 dissolving Parliament before an election 44 bringing an Act of Parliament into force 44 compliance with EU Directives – for example, the Consumer Protection Act 1987 (Product Liability) (Modification) Order 2000, which was passed to comply with a Product Liability Directive 44 dealing with foreign affairs – for example, the Afghanistan (United Nations Sanctions) Order 2001, which makes it an offence to make funds available to Osama Bin Laden or the Taliban or any person or body connected with Osama Bin Laden or the Taliban 44 in times of national emergency, when Parliament is not sitting. An example of an emergency situation in which an Order in Council was made, was after the terrorist attacks on 11 September 2001. The Terrorism (United Nations Measures) Order 2001, made on 10 October 2001 under the provisions of the United Nations Act 1946, made it an offence to provide funds to anyone involved in terrorism and allowed for the freezing of any such funds. A further example is The Extradition (Terrorist Bombings) Order 2002, which was made under the provisions of the Extradition Act 1989. It came into force on 27 August 2002 and allowed for persons suspected of terrorist activities to be extradited – that is, transferred from one country to another for questioning and trial. Another emergency situation that required an Order in Council was the fuel crisis in 2000. Truck drivers protesting about the price of fuel had blockaded some refineries, preventing fuel tankers from leaving, with the result that many petrol stations ran out of fuel. The Energy Act 1976 (Reserve Powers) Order 2000 was made under the provisions of the Energy Act 1976. It came into force on 11 September 2000 and enabled movement of fuel throughout the country. In the case of emergencies, powers are given by parent Acts which authorise the Queen and Privy Council to make law. Other examples of such parent Acts include the Emergency Powers Act 1920 and the Civil Contingencies Act 2004.
Statutory instruments
Key terms Statutory instruments: laws made by Government ministers within the area of their responsibility. They are enforceable in the courts.
As seen by the example of implementing the smoking ban (see p31), statutory instruments are laws made by a government minister under the authority of a parent/enabling Act within the area of their ministerial responsibility. They are drafted by the legal department of the relevant government department. Statutory instruments are often used to update a law; for example, a statutory instrument might be used to change the amount of a fine for a criminal offence. Another example is the regular increase in the amount of the national minimum wage under the National Minimum Wage Act 1998. Sometimes wider powers are given to the government minister to fill in the necessary detail which is too complex to be incorporated into the Act. Statutory instruments are often referred to as ‘Regulations’ or ‘Orders’.
26
Chapter 2 Delegated legislation Statutory instruments are often made in the form of Commencement Orders. These are orders made by a government minister specifying when an Act or part of an Act must come into force. This is shown in the following example, which brings into force some of the Railways Act 2005.
2007 No. 62 (C. 2) TRANSPORT RAILWAYS The Railways Act 2005 (Commencement No. 8) Order 2007 Made 16th January 2007 The Secretary of State makes the following Order in exercise of the powers conferred by section 60(2) of the Railways Act 2005: Citation 1. This Order may be cited as the Railways Act 2005 (Commencement No. 8) Order 2007. Commencement 2. (1) The provisions of the Railways Act 2005 specified in paragraph (2) shall come into force on 29th January 2007. (2) Those provisions are— (a) section 3 to the extent that it is not already in force; (b) section 4; (c) section 59(6) in so far as it relates to the provisions of Schedule 13 brought into force by this Order; (d) Schedule 4; and (e) in Part 1 of Schedule 13— (i) the entry relating to Schedule 4A of the Railways Act 1993 to the extent that it is not already in force; and (ii) the entry relating to paragraph 11 of Schedule 28 to the Transport Act 2000. Signed by authority of the Secretary of State for Transport Tom Harris Parliamentary Under Secretary of State 16th January 2007 www.opsi.gov.uk
Sometimes several Commencement Orders may be made in respect of the same Act. For example, the Town and Country Planning Act 1971 was brought into force by 75 Commencement Orders! There is generally no time limit within which a Commencement Order must be made after an Act has been passed. This means that some Acts never actually come into force, an example being the Easter Act 1928, which specifies a fixed date for Easter. Law that is made to comply with directives from the European Union is usually made in the form of a statutory instrument. For example: 4 the Unfair Terms in Consumer Contracts Regulations 1999 were made in order to comply with the Unfair Terms in Consumer Contracts Directive 1993 4 the Sale and Supply of Goods to Consumers Regulations 2002 were made in order to comply with the Sale of Consumer Goods Directive 1999. Both of these regulations provide extra protection to consumers.
27
Unit 1A Law-making A large volume of law is made in the form of statutory instruments each year. In 2010, 2971 statutory instruments were made; in 2011, 3133 were made. Statutory instruments can be enforced in the courts and are just as much part of the law of the country as Acts of Parliament. Some apply to the whole of the UK and others apply only to certain countries within the UK – for example, to England and Wales.
By-laws
Key terms By-laws: laws made by local authorities and public bodies. They are enforceable in the courts and apply to a local authority area or to the public body only.
By-laws are made by local authorities and public corporations or companies. They must be ‘confirmed’ (approved) by the relevant government minister, and are enforceable in the courts. Local authorities can make laws that apply just within their geographical area. A County Council can pass laws affecting a whole county, while a City, Town or District Council may pass laws affecting that city, town or district. These laws may deal with many issues – for example, drinking alcohol in public places or the fouling of public areas by dogs.
Fig. 2.2 These are common local authority by-laws
A parent Act in respect of dog fouling is the Clean Neighbourhoods and Environment Act 2005, which replaced an earlier Act. Under the 2005 Act, a local authority can:
a designate areas of land on which it is an offence for anyone to fail to remove dog faeces deposited by a dog for which he or she is responsible
b to ban dogs from certain areas of land such as beaches, parks and children’s playgrounds.
28
Chapter 2 Delegated legislation An example of a by-law made by Hastings Borough Council under the 2005 Act is shown below.
The Clean Neighbourhoods and Environment Act 2005: The Fouling of Land by Dogs (Borough of Hastings) Order 2008 The Dog Control Orders (Prescribed Offences and Penalties, etc.) Regulations 2005 (S.I. 2006/1059) The Fouling of Land by Dogs (Borough of Hastings) Order 2008 The Borough of Hastings hereby makes the following Order: 1. This Order comes into force on 25 March 2008. Schedule 1 2. This Order applies to all land which is open to the air and to which the public are entitled or permitted to have access (with or without payment) within the Borough of Hastings (marked in red on a specific map) Offence 3. (1) If a dog defecates at any time on land to which the Order applies and the person who is in charge of the dog, at that time, fails to remove the faeces from the land forthwith, that person shall be guilty of an offence unless: a. b.
he has a reasonable excuse for failing to do so; or the owner, occupier or other person or authority having control of the land has consented (generally or specifically) to his failing to do so.
(2)
Nothing in this article applies to a person who:
a.
is registered as a blind person in a register compiled under section 29 of the National Assistance Act 1948; or
b.
has a disability which affects his mobility, manual dexterity, physical co-ordination or ability to lift, carry or otherwise move everyday objects, in respect of a dog trained by a prescribed charity and upon which he relies for assistance.
(3)
For the purposes of the article:
a.
a person who habitually has a dog in his possession shall be taken to be in charge of the dog at any time unless at that time some other person is in charge of the dog placing the faeces in a receptacle on the land which is provided for the purpose, or for the disposal of waste, shall be sufficient removal from the land being unaware of the defecation (whether by reason of not being in the vicinity or otherwise), or not having a device for or other suitable means of removing the faeces shall not be a reasonable excuse for failing to remove the faeces each of the following is a ‘prescribed charity’: i. Dogs for the Disabled (registered charity number 700454). ii. Support Dogs (registered charity number 1088281). iii. Canine Partners for Independence (registered charity number 803680).
b.
c.
d.
Penalty 4. A person who is guilty of an offence under Article 3 shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale. www.hastings.gov.uk
29
Unit 1A Law-making Authority to make by-laws is given in several Acts of Parliament. Many by-laws are made under the authority of the Local Government Act 1972. For example, many local authorities make it an offence to drink alcohol or to skateboard or roller-skate in designated public places in their area, punishable with a fine. These designated areas have to have small signs supporting the prohibition; they are generally found on lampposts. See if you can find one in your area. Public bodies and some companies are authorised to make laws regulating the behaviour of the public while on their property. For example, under the Railways Act 1993 railway companies can issue by-laws about the behaviour of the public on their stations and trains. By-laws made by public bodies and companies are enforceable in the courts. In Boddington v British Transport Police (1998) the defendant was caught smoking on the train in breach of a by-law made in 1965 by British Rail under the Transport Act 1962. The Magistrates’ Court fined him £10 and the decision was upheld on appeal. Similar by-laws apply for the payment of fares and are enforceable by a penalty fare and/ or fine. Table 2.1 A summary of the types of delegated legislation Type of delegated legislation Who makes it?
In what circumstances is it used?
Examples
Orders in Council. Made by the Queen and Privy Council.
To transfer responsibilitites between government departments. To dissolve Parliament.
National Assembly of Wales (Transfer of Functions) Order 1999.
To bring Acts of Parliament into force. To comply with European Directives.
Consumer Protection Act 1987 (Product Liability) (Modification) Order 2000.
To deal with foreign affairs.
Afghanistan (United Nations Sanctions) Order 2001.
To deal with national emergencies.
Terrorism (United Nations Measures) Order 2001.
To update and add detail to an Act of Parliament.
To increase the amount of a fine for a criminal offence, or change the annual amount of the national minimum wage.
To bring an Act or part of an Act into force – a Commencement Order.
Railways Act 2005 Commencement Orders.
To comply with directives from the European Union.
Sale and Supply of Goods to Consumers Regulations 2002.
To make laws for the good government of local areas.
By-laws made under the Clean Neighbourhoods and Environment Act 2005.
To make laws regulating the behaviour of the public on property belonging to a public body or company.
By-laws restricting smoking on trains and stations, and imposing penalty fares for travelling on buses or trains without a valid ticket.
Statutory instruments. Made by government ministers.
By-laws. Made by local authorities and public corporations or companies.
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Chapter 2 Delegated legislation
STATUTORY INSTRUMENTS 2006 No. 3368 PUBLIC HEALTH, ENGLAND The Smoke-free (Premises and Enforcement) Regulations 2006 Made 13th December 2006 Laid before Parliament 18th December 2006 Coming into force 1st July 2007 The Secretary of State for Health, in exercise of the powers in sections 2(5), 10(1) and (2) and 79(3) of the Health Act 2006, makes the following Regulations:— Citation, commencement, application and interpretation 1. (1) These Regulations may be cited as the Smoke-free (Premises and Enforcement) Regulations 2006 and shall come into force on 1 July 2007. (2) These Regulations apply in relation to England only. (3) In these Regulations ‘the Act’ means the Health Act 2006. Enclosed and substantially enclosed premises 2. (1) For the purposes of section 2 of the Act, premises are enclosed if they— (a) have a ceiling or roof; and (b) except for doors, windows and passageways, are wholly enclosed either permanently or temporarily. (2) For the purposes of section 2 of the Act, premises are substantially enclosed if they have a ceiling or roof but there is— (a) an opening in the walls; or (b) an aggregate area of openings in the walls, which is less than half of the area of the walls, including other structures that serve the purpose of walls and constitute the perimeter of the premises. (3) In determining the area of an opening or an aggregate area of openings for the purposes of paragraph (2), no account is to be taken of openings in which there are doors, windows or other fittings that can be opened or shut. (4) In this regulation ‘roof ’ includes any fixed or moveable structure or device which is capable of covering all or part of the premises as a roof, including, for example, a canvas awning. Enforcement 3. (1) Each of the following authorities is designated as an enforcement authority for the purposes of Chapter 1 of Part 1 of the Act— (a) a unitary authority; (b) a district council in so far as it is not a unitary authority; (c) a London borough council; (d) a port health authority; (e) the Common Council of the City of London; (f) the Sub-Treasurer of the Inner Temple and the Under Treasurer of the Middle Temple; and (g) the Council of the Isles of Scilly. Signed by authority of the Secretary of State for Health Caroline Flint Minister of State for Public Health Department of Health 13th December 2006 www.opsi.gov.uk
31
Unit 1A Law-making
Activities 1 On page 31 is an extract of a recent piece of delegated legislation called a
‘statutory instrument’. Answer the following questions about the extract: a Who was this piece of delegated legislation made by? b Under what piece of primary legislation (enabling Act) is it made? c To which part of the UK does the law apply? d Section 2 of the Health Act 2006 allows for the appropriate national authority to define, in delegated legislation, what ‘enclosed premises’ mean. How have they been defined? e How have ‘substantially enclosed premises’ been defined? f Who is responsible for enforcing the ‘no smoking’ ban?
g Why was there a gap of six months between the making of the law and it coming into force? 2 Suggest which type of delegated legislation would be used in the
following circumstances:
a to transfer the responsibilities for university education from the Education Department to the newly created Department of Higher Education; b designating a new road; c a law introducing updated health and safety requirements; d increasing the amount of a fine for failing to travel with a valid train ticket; e declaring a ‘state of emergency’ to cope with widespread floods.
You should now be able to:
identify the main types of delegated legislation
describe how each of the main types of delegated legislation are made
answer exam questions on the topic of creation of delegated legislation.
In this topic you will learn how to:
2 4 Control of delegated legislation 4
44 describe parliamentary
We have seen that the power to make law is delegated to many different people/bodies. It is clear that some control must be exercised. Broadly speaking, there are two methods of control over delegated legislation: parliamentary control and judicial control.
controls on delegated legislation 44 describe judicial controls on
delegated legislation 44 evaluate the effectiveness of
these controls.
32
Parliamentary control The initial control Parliament exercises over delegated legislation is through the limits it sets in the parent/enabling Act. Only the people or bodies specified in the parent Act have power to make law, and the extent of that power is also specified. In addition, the parent Act will set out how the delegated legislation must be made and may establish certain procedures, such as consultation, that must be followed. Parliamentary supremacy is not compromised because Parliament ultimately remains in control of what law is made and how it is made. Although law-making is removed from the elected House of Commons through the parent Act, it specifies the limits of that power.
Chapter 2 Delegated legislation Parliament may repeal or amend the piece of delegated legislation. This control also upholds parliamentary supremacy, as Parliament can make or unmake any law. However, the effectiveness of this control is limited because, due to the volume of delegated legislation made each year, Parliament is not able to check it all. All by-laws are confirmed or approved by the relevant government minister. For example, by-laws made by Hampshire County Council under the Children and Young Persons Act 1933, regulating the local employment of children, were approved by the Secretary for Health. This should ensure that all locally made law is overseen by those with knowledge of the technical issues involved. While local authorities are perhaps more aware than Parliament of local issues, the civil service department working for the minister possesses considerable technical expertise.
Study tips It is useful to know how to explain and evaluate the controls over delegated legislation. Remember to comment on the strengths and weaknesses of each form of control.
The Joint Select Committee on Statutory Instruments, more commonly known as the Scrutiny Committee, is made up of MPs and peers. Its role is to review statutory instruments and to refer provisions requiring further consideration to both Houses of Parliament. The main reasons for referring a statutory instrument back to the Houses of Parliament are: 44 it appears to have gone beyond or outside the powers given under the parent/enabling Act 44 it has not been made according to the method stipulated in the parent Act 44 unexpected use has been made of the delegated power 44 it is unclear or defective 44 it imposes a tax or charge – only Parliament has the right to do this 44 it is retrospective in its effect, and the parent/enabling Act did not allow for this. This is arguably one of the more effective controls, as many statutory instruments are subject to some scrutiny. However, it is impossible for the Scrutiny Committee to review all statutory instruments because over 3000 are created each year. Furthermore, the powers of the Scrutiny Committee are limited in that it has no powers to amend the statutory instrument; it merely reports its findings back to either the House of Commons or the House of Lords. Research by the Hansard Society, reported in 1992, revealed that many of the Scrutiny Committe’s findings were ignored. The House of Lords Delegated Powers Scrutiny Committee checks all bills for any inappropriate enabling provisions. Any such provisions are brought to the attention of the House of Lords before the bill goes to the Committee stage (see p15). This is an effective control because, if the enabling provisions are made appropriately, it is more likely the law made under the authority of them will also be. Most statutory instruments must be laid before Parliament. This requires the statutory instruments to be laid on the table of the House. The parent Act will state whether the statutory instrument must be laid before Parliament, and which method must be used. There are two methods of laying delegated legislation before Parliament. First, there is the positive (or affirmative) resolution procedure. This means that the statutory instrument must be approved by one or both Houses of Parliament within a specified time, usually between 28 and 40 days, before it can become law. An example is the Human Rights Act 1998. Section 1(4) authorises the Secretary of State to make amendments to the Act as he thinks fit, to reflect the rights in protocols that have been ratified or have been signed with a view to ratification by the UK. By virtue of s20 any such amendments are subject to the affirmative resolution procedure.
Key terms Positive (or affirmative) resolution procedure: the statutory instrument must be approved by a vote in one or both Houses of Parliament within a specified time limit.
33
1
Practice questions 44 Unit 1A questions in the AQA exam Unit 1A together with Unit 1B constitutes Unit 1 of the AS specification. Unit 1A is about law-making and Unit 1B is about the legal system. Unit 1A and Unit 1B are examined together on one examination paper, which constitutes 50 per cent of the overall marks for the AS qualification and 25 per cent of the overall marks for the A2 qualification. The Unit 1 examination is of 1.5 hours’ duration. You must answer questions from three topics: one topic from Unit 1A; one topic from Unit 1B; and another topic, which may be from Unit 1A or 1B. There will be a choice of four topics in Unit 1A and four topics in Unit 1B. Each topic is represented by one question, which has three parts. You must answer all parts of the question. Each part is normally worth 10 marks; the entire question is worth 30 marks, plus 2 marks for Assessment Objective 3. All parts of each topic relate to the same topic area of the AQA Law AS specification – that is, the same chapter of this book. Parts (a) and (b) will normally be a test of your knowledge and understanding, and part (c) will normally be evaluative, requiring simple discussion of advantages and disadvantages of a topic. Questions require essay-style answers. You should aim to include: 44 correct identification of the issues raised by the question 44 sound explanation of each of the points 44 relevant illustration. Illustration may be in many forms – for example, legislation, cases, research, statistics, and material from the media.
70
Practice questions
44 Chapter 1: Parliamentary law-making These example questions are taken from past exam papers. You must answer all three parts of the question.
Example question 1 (AQA, May 2011) a) Describe any one influence operating on Parliament in the law-making process. (10 marks) b) Describe the law-making procedure in Parliament. (10 marks) c) Briefly discuss advantages and disadvantages of the parliamentary law-making procedure.
(10 marks+ 2 marks for AO3)
Example question 2 (AQA, January 2012) a) Outline the process in the House of Commons and the House of Lords in the making of an Act of Parliament. (10 marks) b) Describe the Law Commission or the media or pressure groups as an influence operating on Parliament in the law-making process. (10 marks) c) Discuss advantages of the process of parliamentary lawmaking.
(10 marks+ 2 marks for AO3)
Example question 3 (AQA, May 2012) a) Briefly explain what is meant by the doctrine of parliamentary sovereignty. Outline one limitation on this doctrine.
(10 marks)
b) Outline the following: The nature and purpose of Green and White papers The law-making process in the House of Commons.
(10 marks)
c) Discuss disadvantages of the law-making process in Parliament. (10 marks + 2 marks for AO3)
71
Unit 1A Law-making
44 Chapter 2: Delegated legislation These example questions are taken from past exam papers. You must answer all three parts of the question.
Example question 1 (AQA, May 2012) a) Statutory instruments, Orders in Council and by-laws are all forms of delegated legislation. Briefly describe any two of these forms. (10 marks) b) Describe parliamentary controls on delegated legislation.
(10 marks)
c) Discuss why Parliament delegates law-making power.
(10 marks + 2 marks for AO3)
Example question 2 (AQA, January 2012) a) There are different forms of delegated legislation, including statutory instruments, Orders in Council and by-laws. Describe any one form of delegated legislation. (10 marks) b) Explain why Parliament needs to delegate law-making power. (10 marks) c) Discuss disadvantages of delegated legislation.
(10 marks + 2 marks for AO3)
Example question 3 (AQA, January 2011) a) Outline what is meant by statutory instruments and by-laws. (10 marks) b) Describe judicial controls on delegated legislation.
(10 marks)
c) Discuss the reasons for the use of delegated legislation in the English legal system. (10 marks + 2 marks for AO3)
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Practice questions
44 Chapter 3: Statutory interpretation These example questions are taken from past exam papers. You must answer all three parts of the question.
Example question 1 (AQA, May 2012) a) Outline external (extrinsic) aids to interpretation and one of the rules of language. (10 marks) b) Describe the golden rule of statutory interpretation. (10 marks) c) Briefly discuss advantages and disadvantages of the golden rule. (10 marks + 2 marks for AO3) Example question 2 (AQA, January 2012) a) Outline the purposive approach to statutory interpretation and outline one of the rules of language. (10 marks) b) Outline the literal rule of statutory interpretation.
(10 marks)
c) Briefly discuss advantages and disadvantages of the literal rule. (10 marks + 2 marks for AO3) Example question 3 (AQA, May 2011) a) In the context of statutory interpretation, briefly describe what is meant by two of the following: rules of language external (extrinsic) aids internal (intrinsic) aids. (10 marks) b) Describe either the literal rule or the mischief rule.
(10 marks)
c) Briefly discuss advantages and disadvantages of the literal rule or of the mischief rule.
(10 marks + 2 marks for AO3)
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